President's Limits of Discretion

Indian Political Science Association
THE PRESIDENT OF INDIA LIMITS OF DISCRETION

Author(s): K. R. BOMBAWALL and K. R. BOMBWALL
Source: The Indian Journal of Political Science, Vol. 27, No. 3/4
(July—September—December 1966), pp. 23-36
Published by: Indian Political Science Association
Stable URL: http://www.jstor.org/stable/41854187
Accessed: 01-12-2017 13:04 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms
Indian Political Science Association is collaborating with JSTOR to digitize, preserve and
extend access to The Indian Journal of Political Science
This content downloaded from 210.212.199.162 on Fri, 01 Dec 2017 13:04:13 UTC
All use subject to http://about.jstor.org/terms
THE PRESIDENT OF INDIA
LIMITS OF DISCRETION
By
K R. BOMBAWALL
Motilal Nehru Regional Engineering College, Allahabad .
There has been considerable academic debate in India as regards the role
contemplated in the Constitution for the President of the Republic. Taking
an ultra-literal view of certain constitutional provisions, some scholars
and jurists have held that the President can, if he chooses, act without or in
disregard of the advice of his Ministers in exercising the powers formally
vested in him. Thus, referring to article 74 (I) of the constitution, which
provides that "There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President in the exercise of his funetions",
D. N. Banerjee has observed : "The essential point is whether the President is
legally bound
circumstances. My submission is that he is not. " 1 According

"It is possible to contend that the constitution does not sufficie
against the President becoming a dictator" ' He takes the
"without violating the Constitution the President can establish an
rian government". 3
More recently, the controversy regarding the President's posit

revived by India's first President, the late Dr. Rajendra Prasad him
course of an address delivered at the Indian Law Institute, he drew
to the fact that "There is no provision in the Constitution which i
words lays down that the President shall be bound to act in accord
the advice of his Council of Ministers" 4. In view of the differenc
the constitutions of Great Britain and India, he raised the question
it was proper to equate the position of the President of India with
1. D, N. Banerea. "Position of the President of India". The Modern Review

December. 1950, P. 458.
2. Allen Gledhill, The Republic of India. London. 1951, p. 103.
3. Ibid.
4. The Hindustan Times» 30 November 1960. P. I.
[ 24 ]
British 'monarch. He felt the need of "study and investigation in a
scientific manner so that we may know what the scope of powers and functions
of the President is" 5. A few days later, Prime Minister Nehru declared in a
press conference that Dr. Prasad's remarks were 'casual'. Nevertheless,
coming as they did from the first occupant of Rashtrapad Bhavan, Dr.
Prasad's observations touched off what the Union Law Minister A. K. Sen
described as a major political controversy since the constitution came into
force ". 6 Despite Nehru's assertion that 'Politically and constitutionally'
the President's position is akin to that of the British Crown, the question
posed by Dr. Prasad continues to evoke conflicting answers, a fact highlighted
in a symposium published in a New Delhi weekly wherein a large number of
well-known scholars, politicians and jurists participated. Views
expressed in the symposium presented a wide spectrum ranging from the one
which regarded the President of India as a complete analogue of the British
sovereign to the one which looked upon him as a potential de Gaulle.
In a newspaper article published some three years ago K. M. Munshi, an

eminent politician and member of the Constituent Assemly, envisaged for the
Indian President a much more positive role than one would attribute to a
purely constitutional head of the State. He maintained that some of the
powers of the President were "supra-ministerial' where the ministry could not
be relied on to advise him. 8 Commenting on the role the President should
play, Sampurnanand, former Chief Minister of Uttar Pradesh and at present
Governor of Rajasthan, has stated that "The only way to save democracy is
to vest the President with the power to intervene in the administration when
circumstances, in his opinion make this necessary".9
In view of the continuing controversy, it may be instructive to see what

role the framers of the Indian Constitution envisaged for the President.
Discussions in the Constituent Assembly brought out three points quite clearly.
In the first place, it was unmistakably the intention of the constitution-makers
to adopt the parliamentary form of government for the country. A few
members argued in favour of the presidential system as more suitable to India
on account of its strength and stability10. This view, however,, was strongly
opposed by spokesmen of the Drafting Committee and, after giving 'anxious
thought to the matter', the Assembly decided in favour of the "ministerial
s. Ibid.
6. The Hindustan Times. 26 March. 1961, r. 6.
7, The Hindustan Times. 16 December 1960 r. L
8. K. M- MunsKi. "Powers and Functions of the President . lhe Hindustan limes
(Republic Day Supplement). 26 January 1956. P. IV.
9, Sampurnanand Memories and Kenections. Domcay. 1962. rr • 157*58.
10. The late Professor K. T, Sana was one of the most vocal advocate« or the presiden-
tial system See Constituent Assembly Debates, VII. PP. 975-80.
[ 25 ]
character of the government" in which "power resided in the Ministry and the
Legislature and not in the President as such."1 1 To quote Alladi Krishnaswami
Aiyer." After weighing the pros and cons of the parliamentary executives as
they obtain in Great Britain, in the Dominions and in some continental
countries, and the presidential type of government fis it obtains in the tJnited
States of America, the Indian Constitution has adopted the institution of
parliamentary executive".1 3
In the second place, the framers accepted it as a natural corollary of the

adoption of the parliamentary system of government that the President of India
would be a constitutional head like the British monarch and that he would be
bound, by the recognised principles and conventions of this form of government,
to act on the advice of his ministers. "The President," Dr. Ambedkar
"occupies the same position as the King in the British Constitution
can do nothing contrary to their (the Ministers') advic

'symbolic' position was repeatedly stressed. According to
"the head of the State, but not of the Executive"14.
categorically stated that "The President means the Centra
to Parliament"15. It was, in fact, with a view to emphasis
position as the constiutional head that a provision in the
empowering him in specific terms, to act in his discretio
was dropped. In view of all this positive evidence of the f
make the President a constitutional ruler, it is somewhat
position was not stated in specific language so as to put th
pale of controversy.1 6 No less a man than Dr. Rajendra P
the Constituent Assembly, expressed the doubt whether
clear constitutional provision the President would feel bou
on ministerial advice. He even asked whether there was a
stating in the * constitution in so many words that th
11. C A. D.. IV. P. 134. (Jawaharlal Nehru)

12, C. A D.. VII. P, 896. T. T. Krishnamackari put tke Position a
-So far aa tke relationship between ihe President and ths Cabin
have . completely copied the system of responsible governmen
in Britain to-day". Ibid.. x. P. 956.
13. Ibid.. VII. P. 32,
14. Ibid.
15. Ibid.. IX. P. 124.
16. As. for instance, has been done in article 13 (9) of the Constitution of Ireland.
Article 3 of the new constitution of Japan similarly Provides that "the advtce and
approval of the Cabinet shall be required for all acts of the EmPeror in matters of
state". The Indian Constituent Assembly, on the contrary, left the position deli
berately indefinite. It even* omitted from the constitution a Schedule of Instructions
for the President which was included in *he Draft and which, in Para 3. said that
"in all matters withtn the scope of the executive power of the Union, the President
•hall, in th® of his pç>wer#. be guided by the advice of hU Ministers",
4
L 26 1
bound by the advice of the ministers. Members of the Drafting Committee
felt, however, that the position was clear enough in the constitutional provisions
els they stood, reinforced by the conventions developed in the working o£
parliamentary government in Great Britain. "The whole scheme of the
Consti tuion", it was asserted, "has been envisaged on the basis that the
President is a constitutional head even if we have not put it in so many words
in the Constitution"1 8. Dr. Ambedkar even want to the length of assuring a
member that the President would be liable to impeachment if, in any particular
case, he did not act on the advice of the Council of Ministers.19
In the third place, though the constitution-makers intended the President

to function as a constitutional head, it was evidently not their intention to
make him a figure-head. True, Dr Ambedkar did say on one occasion that
the President would be "a mere figure-head who has no discretion and no
powers of administration at all" 20. However, he also said that the President
"will -be generally bound by the advice of Ministers" ai. The use of the word
'generally' would seem to leave room for the President to act in his discretion
in some exceptional circumstances. In fact, Ambedkar spoke somewhàt vaguely
of the President's 'prerogative powers'. 2 2 That the framers expected the
President to be more than a mere rubber-stamp is, in any case, clear from
Jawaharlal Nehru's view that the President of India would not be an automaton
like the President of (pre-de Gaulle) France and that "we did not give him any
real powers but we have made his position one of authority and dignity.*' 2 3
While the general intention of the framers was, thus, to project the image
of a constitutional President, it must be conceded that the position was not
Precisely spelled out in the text of the constitution 2 4 As a result, it continues
to be said in certain quarters that, as far as the constitution is concerned, the
President may well become a 'constitutional autocrat'. In the Coijsembly itself
some members felt that "too much power has been given to the President". 25
What, then, is the position in terms of the actual provisions of the
17. C. A. D.. VIII. p 213.
18. Ibid.. IX. p. 150.
19. Ibid.. X. p. 269.
20. Ibtd. IX. 1036.
21. Ibid. VII p. 32. Emphasis in the original.
22. Ibid. VII. p. 974.
23. Ibid., IV, p. 734. K, M. Munshi bolds that the word 'authority* used by Pandit
Nehru 'could not posstbily be equated with powerlessness: its plain meaning is
legal power"- The President under the Indian Constitution, Bombay, 1963. p. 7.
24. K. M. Munshi declares, however, that "in adopting the relevant provisions, the
Constituent Assembly did not understand that they were creating a powerless
President. The assurances given by Dr. Ambedkar and Dr. Alladi Krishnaswami
Ai yar ••••.. were their personal opinions; it waè not the unanimous view of the
House . Ibid., P* 9.
25. C. A. D., XI, P, 988.
t 27 ]
Constitution, presuming that the President is under no obligation to be guided
by the 'intentions' of the framers ? The entire controversy regarding the
President's 'powers' turns upon the interpretation of articles 53 (I), 74 (I), 75 (2)
and 75 (3). Article 53 (I) lays down that 'the executive power of the Union
shall be vested in the President" and is to be exercised by him "in accordance
with the Constitution", that is, in accordance with the stipulation made in
article 74 (I) which provides that "There shall be a Council of Ministers, with
the Prime Minister at the head, to aid and advise the President in the exercise
of his functions". The categorical language of this article clearly means that
there must always be a Council of Ministers and that the President cannot act
without their advice. Does he have to act in accordance with their advice ?
Taken literally, the phrase 'aid and advise' may seem to suggest that the
ministers have to function as the President's advisers and that it is for the
latter to make decisions. However, 'aid and advise' is a term of art and has
acquired a generally accepted connotation from the constitutional practice of
Great Britain and the Dominions. 2 6 As Alladi Krishnaswami Aiyer put it in
the Constituent Assembly, the phrase is "a constitutional euphemism" 2 7 and
embodies the well-known British convention whereby the King always acts on
the advice of his ministers even though all power is legally vested in him. It is
in this sense, therefore, that the phrase 'aid and advise' has to be understood
in India also. The Instrument of Instructions appended to the Government of
India Act. 1935, made it clear that the phrase 'aid and advise' used in the Act
meant that the Governor-General and the provincial Governors were to be
guided by the advice of their respective ministers except where they were
specifically required to act in their'discretion or to exercise their individual
judgment. The Constitution of India itself makes such an exception in the case
of the State Governor who, according to article 163 (I) is exempted from the
obligation to act on the advice of his ministers where he is required to act in
his discretion. Since the Constitution does not contain any provision requiring
the President to act in his discretion, it is logical to conclude that he must, in
all matters, act on the advice of his ministers. Such a conclusion is supported
by article 75 (3) which makes the Union Council of Ministers collectively
responsible to the Lok Sabha. Article 75.(2) does, of course, provide that the
ministers shall hold office during the pleasure of the President, but 'during
the pleasure' like 'aid and advise' is one of the constitutional fictions of
26. The phrase 'aid and advise' ti used in the British North America Act, 1867 (S. 86) and
the Commonwealth of Australia Act, 1900, (S. 6a). The Constitution of the
Union of South Africa uses the word 'advice'. But In all these cases, the mean-
ing attached to 'advise' is to decide in the name of the state'. The new consti-
tution of JaPan seels to avoid i he ambiguity of 'advise' by employing the Phrase
''advice and aPProval", (Article 3)
27. C. A. D, X. P. 270.
t 28 1
parliamentaty government To combine a 'responsible' Council of Ministers with
a President who may dismiss ministers at will is. in fact, no less difficult than
to mix oil with water. The unambiguous spelling out of the principle of
ministerial responsibility must, therefore, be taken to predicate a constitutional
status for the President. The Supreme Court of India has, in an
opinion expressed in an important judgment supported this view.28
It must be conceded, however, that the Constitution does not provide any
legal sanction to ensure that the President will, in fact, function as a constitu-
tional head. Not only is there no provision requiring the President to accept
and abide by the advice of his ministers, it is laid down in article 74 (2) that
the question whether any and, if so, what advice is tendered by the ministers
to the President cannot be enquired into in any court. 2 9 Article 361 provides
that the President shall not be answerable to any court for the exercise and
performance of powers and duties of his office or for any act done or purporting
to be done in the exercise and performance of those powers and duties. Some
jurists including Patanjali Sastri, former Chief Justice of the Supreme Court,
have, indeed, argued that the President is free to reject ministerial advice as no
limitation can be put on his powers except by a specific provision of the
Constitution.30
Evidently, the sanctions to prevent the President from exercising arbitrary

authority must be conventional and political rather than legal. If, in violation
of the recognised conventions pf parliamentary government, the President acts
in disregard of the advice of his ministers, the latter will, in aU probability,
tender their resignation. As there is no provision corresponding to article 356
enabling him to deal with the breakdown of constitutional machinery at the
Centre, the President will be faced with the problem of finding an alternative '
Council of Ministers willing to accept responsibility for his action and able to
muster the • support of a majority in the Lok Sabha. This is likely to be
impossible since the outgoing ministry would presumably continue to enjoy the
confidence of the House even after its forced resignation. The President may
install a minority Government but the latter will fall the moment it faces a
hostile Lok Sabha. The President may try to break the deadlöck by dissolving
the Sabha and gambling on a fresh general election. If the gamble succeeds, the
new Lok Sabha may support a Government willing to accept responsibility
28, In Ram Jawaya V . the State of Punjab (1955. 2 S. C, R.t 255). The SuPreme Court
has observed : The President has. thus, been made a formal or constitutional head
of the executive and the real executive Powers are vested In the Ministers'
29. B. N. Rau has stated ; Even if in any Particular Instance the President acts
otherwise than on Ministerial advice, the validity of the act cannot he challenged in a
court of law -on that ground". India's Constitution in the making. Madras.
1960. F. 375.
30. K. L. Punjabi, Rajendra Prsaad. Madras. 1960/ p. 161.
t 29 1
for the President's decisions. But, as is equally possible, the electorate may
return the outgoing Government to power. In such an event, the President's
predicament may be so grave as to force him to resign. No President, it may be
asserted, would normally run the hazards involved in such an endeavour to
assert his authority against the advice of his ministers. In any case, a President
who has more courage than prudence can, in the last resort, be brought to heel
through impeachment. It must be emphasised that impeachment, despite its
quasi-judicial appearance, is essentially a political weapon to be used by
Parliament which is not a court of law and which is likely to decided on
political rather than legal grounds the question whether the President's actions
amount to violation of the Constitution. One may assume, therefore, that
the President will be guided more by what is constitutionally proper and
politically expedient thaa by what may appear to be legally permissible.
The assumption is supported by whatever evidence is available in

regard to the actual manner in which the President of India has been
functioning during the past fifteen years. The consensus of opinion is that he
has consistently acted in conformity with the framers' design, that is to say
as a constitutional head. Speaking in the Lok Sabha in April 1957, Law
Minister A. K. Sen asked members to remember that the President "acted
on the advice of the Cabinet and to "be more specific, on the advice of the
Prime Minister' 31 . In a press conference (July 1959) Prime Minister
Nehru was able to assure journalists that the "President is a constutional ruler
that of the Cabinet " 3a. Some eighteen months later, Nehru h
declare again- this time in reference to the controversy ge
Rajendra Prasad's address to the Indian Law Institute that "
is and has always acted as a constituonal head". 33
India, one may say, has been singularly lucky in having

Dr. Rajendra Prasad as her first President. In the twelve years
he occupied the Rashtrapati Bhavan, he displayed a sense of
and personal propriety which gave a good start to parliamentar
India. One of the country's 'tallest' leaders, Dr. Prasad carrie
with a rare grace and self-effacing devotion to duty. His te
such that he "would rather reach an understanding than force
an issue.". 34 Without ceasing to be a Congressman, he held
31. The Statesman. 18 April 1957, P. 4.
32. The Hindustan Times. 8 July 1939. Nehru was speaking in reference to a contro-
versy relating to the leakage of a letter addressed by Dr. Rajendra Prasad to the Prime
Minister wherein the former was reported to have expressed opinions different from
those of the Cabinet on matters like cooperative farming and state trading in food-
grains .
33. The Hindustan Times* 16 December I960, p. L
34, K. L. Punjabi, op. eit,. n. 30. p» 163.
[ 30 ]
himself rigidly aloof from party politics and truly became a symbol
of the nation. In short, he was just the man to fill the role of a
constitutional head of the state. If on one or two occasions his name was
dragged into controversy, it was due not to any attempt on his part to assert
himself but to the clumsy manoeuvres of some interested politicians and over-
zealous admirers. On his part, Dr. Prasad discouraged all attempts to build a
'King's party' or even a presidential lobby within the Congress parliamentary
party. He showed no inclination to exploit his immense popularity and
prestige in order to set himself up as an independent focus of power. Besides,
his life-long friendship with Prime Minister Nehru and their profound regard
for each other made for cordial and strainless relations between the two.
Available evidence seems to indicate that Dr. S. Radhakrishnan, the present
President of India, is following the tradition established by his illustrious
predecessor and has shown no desire to act as Plato's philosophef-king to whom
some eulogists compared him on his elevation to the highest public office in
the country.
If, however, the Constitution has contemplated and actual practice has
demonstrated the 'constitutional' character of the Indian Presidency, it does not
follow that the President is a figure-head whose role is limited to
performing opening ceremonies, attending state banquets, delivering platitudinous
speeches written up for him and signing on the dotted line. Far from being an
automaton, he holds an office of great dignity and considerable influence. This,
again, is in line with the role envisaged for him by the constitution-makers.
Of course, the President has to act on the advice of the ministers. But, as
B. N. Rau has put it, "acting on ministerial advice" does not mean immediate
acceptance of the Ministers' first thoughts. The President can state his
objections to any proposed course of action and ask his Ministers in Council, if
necessary, to reconsider the matter. It is only iti the last Tesori that he should
accept their final advice"35. Article 78 which defines the true scope of the
President's powers requires the Prime Minister to communicate to the President
the 'decisions' of the Council of Ministers regarding the administration of the
affairs of the Union or proposals for legislation ami empowers the President to
rlomanrl that a decision taken by an individual minister should be submitted to
the Council of Ministers as a whole. The Indian President, thus, possesses the
British monarch's three traditional rights, the right to be consulted,
the right to encourage and the right to warn. He has, in other
words, a residual authority to "enforce mature deliberation of important
questions of policy". There is evidence to show that Dr. Prasad exercised this
residua] authority in ample measure, and, often, to good purpose. Until the
archives of the period are released for public study, it will not be possible to
(35) B. N. Rau, op. cit., n. 29, p. 382.
t 31 ]
assess precisely the quantum of influence he was able to exert on the shaping of
the Union Government's policies. Some indications are, however, available
that his views carried great weight with the government. It is generally believed
that his views had something to do with the postponement of the consideration
of the Hindu Code Bill. According to his biographer, Dr. Prasad advised the
Prime Minister in favour of postponement and was reported to have been ready
tp appeal to the legislature by sending a message with that recommendation. 36
It is known that he frequently communicated his criticisms and suggestions to
the Prime Minister in writing and that these had a positive impact on the
government's decisions. However, he never pressed his views on the Govern-
ment beyond the limits of persuasion "The voice of reason," wrote "B. N. Rau,
"is more readily heard when it can persuade but no longer coerce" 3 7 .
What Ivor Jennings has said of the British King is, therefore, equally true
of the President of India. In relation to ordinary policy his influence "May be
substantial though it is rarely the deciding factor. It is advisory rather than
decisive" 3 8. He must, in the last resort, accept ministerial advice in all matters
which the ministers regard as important enough to involve their responsibility.
This, however, does leave a small area of executive action on the border line
between ministerial responsibility and presidential discretion. There may
conceivably be rare but significant occasions when no ministerial advice is
available to the President. Such an occasion may arise, for example, in regard
to the selection of a Prime Minister. Ordinarily, of course, the President has
no choice in the matter. If a single political party holds a majority of seats in
the Lok Sabha and has a recognised leader, the President's choice is a foregone
conclusion. This has been the position in India so far. If, on the other hand,
párty position in the Lok Sabha is not so clear, he may be able to exercise some
discretion in picking one òtit of two or more claimants. Again, if a Prime
Minister dies suddenly or submits a personal resignation and his party, which
still holds a majority in the Lok Sabha, has no "accepted second-in-command
ready to step into his shoes", the President may be able to tilt the balance in
favour of a particular individual by inviting him to form the government. The
British monarch is known to haVe played a decisive role in the choice of the
Prime Minister under such circumstances. Thus when Neville Chamberlain
resigned in 1940, Winston Churchill was the King's choice though, at the time,
he was not even a member of the Cabinet. Again, the present Queen appears
to have taken a personal decision in selecting Harold Macmillan rather than
R. A. Butler as Anthony Eden's successor in 1957. The two-party system
strictly limits the monarch's discretion in this field. On the other hand, the
Indian President may have greater freedom of action in view of the proliferation
of parties in this country.
(36) K. L. Punjabi, op. cit., n. 30, p. 163.
(37) B. N. Ran, op. cit., n. 29, p. 382.
(38) Ivor Jenntnfi, Cabinet Government , London, 3rd ediu, 1939, P. 339.
1 32 ]
It is less certain whether, under any circumstances, the President can
dismiss the Council or Ministers in his discretion. In view of the 'pleasure*
clause in article 75 of the Constitution, it may be argued that he has a legal
right to do so. However, the principle of 'collective responsibility', also
inscribed in the constitution, makes the President's right a purely theoretical
one. In Great Britain, the monarch's right to dismiss his Ministers, which is
still believed to exist, inlaw 39, has never been used since 1783. In 1913,
during the Irish Home Rule controversy, the King was known to have
considered the use of this prerogative but Asquith was able to point out tò him
that such action on his part would "Inevitably prove disastrous to the
monarchy". The general position appears to be that in a parliamentary
government the head of the state cannot dismiss a ministry which enjoys the
confidence of the legislature without causing a chain of consequences which
may make his own position untenable. In India, the 'pleasure' clause in the
Constitution may, at best, have practical significance only as a device for
enabling a Prime Minister to get rid of an inconvenient colleague who cannot be
persuaded to resign 40. The President can use his authority under article 356
to remove a State Council of Ministers even when it has a majority in the
legislature. The absence of an añalogous provision in respect of the Union
Cabinet would seem to . lend further support to the view that the
President's power to dismiss ministers is a technical rather than a substantive
power.
The President's power to dissolve the Lok Sabha is, by and large, similar
in character. In Great Britain, the monarch's right to dissolve the House of
Commons is held by most authorities to have been "Atrophied by disuse".
George V is reported to have actually refused a dissolution in 1910 but it is
known that a threat of resignation by the mmistry made him change his
mind. 4 1 . The President of India too, it seems, wilťfind it virtually impossible
either to exercise the right on his own or to reject a Prime Minister's request
for dissolution. Under the parliamentary form of government, Prime
Ministers may, of course, advise a dissolution not only because they have
trouble with the legislature but because they feel that a particular moment
(39) In 1878 Disraeli advised Queen Victoria that the monarcK had "a clear constitutional
right to dismiss them (the ministers) despite their present parliamentary majority".
The same view was more recently expressed hy A- V. Dicey who, during the Irish
Home Rule controversy, wrote tn I9I3 : * I entirely agtee that the King can do
nothing except on the advice of Ministers I totally disagree with the doctrine drawn
from this principle that he can never dismiss his Ministers In order that he may
ascertain the will of the people". Quoted In Ivor Jennings, op. cit,, n. 38 p. 407.
40) The Governor of Punjab recently used his corresponding power to dismiss Revenue
Minister Rao Birendra Singh on the advice of the State Chief Minister". The
Hindustan Times, 18 August l96l, p. I.
(4I) There are some Commonwealth examples of the Governor General forcing thç
resignation of a ministry hy rejecting a request for dissolution*
[ 33 ]
offers their party the best chance of an electoral victory. However, even if a
dissolution is sought merely as an electoral manoeuvre, the President will have
to accede to the request though he may do this 'in the last resorť after using
his influence to persuade the Prime Minister 'to play the game*. The
position is less clear if a second dissolution is requested by the same Prime
Minister soon after a general election when there is no reason to believe that
there has been a major shift in public opinion or when the formation of an
alternative ministry is clearly possible in the event of the existing Ministry
refusing to carry on the government, if its request for a dissolution is rejected. It
must be noted, however, that 'independent' exercise of the right of dissolution by
the President or his refusal to grant a dissolution when asked for by the Prime
Minister amounts, in effect, to the dismissal of the ministry with the
attendant consequences of such action. Consequently, the President's
discretion in this sphere is hardly likely to be of serious practical
significance. 4 3
Article 111 of the Constitution authorises the President to withhold

assent from non-money bills passed by the two houses of Parliament or
reconsideration along with such amendments as he may desire to suggest.
According to B. N. Rau, the provisions of this article "are intelligible only on
the supposition that the functions of - the President thereunder are meant to be
exercised, at «least in some cases, irrespective oí ministerial advice" 4 3, It is
however, possible to argue that this need not necessarily be the intention
behind the article, for it is difficult to see what hope the President can have of
áccepting amendments suggested by him against thé advice of his ministers.
The article can just as well be understood as a means to enable the Council of
Ministers to bring back a measure to Parliament for certain amend-
ments 'which may have been rendered necessary by factors not foreseen or not
taken into account at the time of its first consideration. B. N. Rau conceded that,
even through unlikely, it is conceivable that the Council of Ministers may
advise the President to withhold assent from a bill for this purpose. It is far more
difficult to conceive of the President exercising his power under article 111
without or against the advice of his Ministers since such action is likely toinvove
him in the grave hazards which are bound to follow any serious clash between
him and the Council of Ministers.
(42) The Practice in the States» however, has followed a somewhat different course. In
Í933 the RajPramukh of Travancore-Cochin dtd not accept the outgoing Chtef
Minister's advice to dissolve the State Assembly. In 1938 the Chtef Minister of
Orissa resigned and was reported to have advised a dissolution. The Governor did
not act on this advice and was atle to Persuade the Chief Minister to withdraw his
resignation.
(43) B. N. Rau, oP. cit., n. 27, Pé 37TÍ

5
t 34 ]
Those who contend that the President can, in his discretion use his
formal power to dismiss his ministers, dissolve the Lok Sabha, turn down the
Prime Minister's request for a dissolution or withhold assent to bills passed by
Parliament, tend to base their contention on the view that President has to act
as a 'guardian' of theContitution. It is stressed that the President's oath of office
which requires him to 'preserve, protect and defend the costitution is 'no
empty verbiage' but that it imposes on him a personal responsibility which
cannot be shifted to the ministers. According to one writer, if "the President
honestly comes to the conclusion that any particular advice tendered to him
by his Ministers is subversive of the Constitution and that the acceptance of
the same is countrary to his oath of office, he would be justified in rejecting
it ' 44
As 'custodian' of the Constitution, the President is supposed to have

several responsibilities such as to defend the fundamental rights of citizens and
the special interests of minorities, scheduled tribes and scheduled castes. He
is supposed, further, to safeguard the legitimate interests of the States as
against the Unioni; it is held that it is the President's function 'to hold the
scales even between the States and the Union Government'. According to
Punjabi, it is clear that the President "Can reject the advice of his Ministers, if
it would result in an encroachment on the rights of the States guaranteed by
the Constitution. One such occasion may arise if the Union Ministry were to
advise the President to refuse assent to a State Bill dealing exclusively with
matters within the jurisdiction of the State." 4S. A. Appadorai has
expressed the view that there being no provision correspondig to article 356
to deal with a breakdown of constitutional machinery at the Centre, "a
reserve power should be deemed to exist in the Head of the State to take such
steps as are necessary to carry on the Government, to preserve law and order
and to maintain the integrity of the State." 4 6
The clear meaning of postulating 'responsibilities' or 'reserve powers' for

the President as flowing from his oath of office or otherwise is that, in <-«> rtaji
contingencies, he may act in his discretion' not because ministerial advice is
not available to him but becasue he feels that there is a clash between the
44. Pheroze ]. Shroff. "President's Powers", The Indian Express, II July 1959, P. 6.
45. K. L. Panjabi, oP, cit. , n, 30, P. 163. K. M. Munshi has expressed the view that
the Power to declare an emergency is left to the President's 'satisfaction*. ' Such
a Power", he writes "cannot be governed by any convention suPPosed or real, for
each emergency Kas to be judged by the President in the light of the circumstances
in which it arises". oP. cit., n 8. P. IV. The implication drawn from the word
'satisfaction' is that the President is free to act otherwise than on ministerial
advice.
46 Link, (New Delhi), Vol. 3, No, 23, 29 Januaiy 1961 , P. 33.
t 35 )
advice of his ministers and the provisions of the Constitution. This evidently
amounts to giving the President the right to interpret the Constitution.clt may
be pointed out here that in Great Britain the theory that the monarch has
some undefined powers as guardian of the Constitution is quite often strongly
challenged. In India such a theory in respect of the President is even less
tenable. The Indian Constitution provides for judicial review and empowers the
Courts to strike down legislative measures or executive decisions which violate
constitutional provisions relating to fundamental rights or special interests of
minorities, scheduled castçs and tribes or the federal distribution of powers. In
short the judiciary is the guardian of the Constiturion and there seems to be no
justification for expecting the President to play this role. If, in view of the
President's oath of office, it is argued that he may have to reject the advice of
his ministers in case it is in his judgement, incompatible with the 'welfare of the
people', the question arises whether there is any basis for the belief that the
President is in a better position to judge things than the Council of Ministers or
Parliament. What assurance is there that, in such matters, the President's
judgement will be impartial or disinterested and that he will not become the
leader or instrument of elements advocating policies opposed to those of the Union
government ? It is necessary, in short, to recognise the dangerous implications
of setting up the President as^ custodian' of the constitution. This is not to say,
however, that the President's oath of office or the provision for his impeach-
ment ceases to have any meaning. We have noted that there can be 'border
line' cases, howsoever rare they may be, in which the President may} have to
take decisions in his discretion. The obligations recorded in his oath of office
and the possibility of impeachment can, together, serve a useful purpose by
deterring arbitrary exercise of the President's marginal authority.
It must, of course, be conceded that it is too early at this stage to define

the precise limits of presidential discretion under the Constitution. In a
sense the Indian Presidency is yet in the making. As a newspaper editorial put
it graphically, "only a few of the muscles of the Presidency have been tested in
the last few years". 17 The relationship that has hitherto subsisted
between the President and the Union Council of Ministers has
been the result of a combination of circumstances : the dominance
of one political party, the temperament of the first President, the personality of
the first Prime Minister and the weakness and fragmentary character of the
opposition - which cannot be expected to last indefinitely. Whether the
tradition of constitutionalism set by Dr. Rajendra Prasad has struck firm roots
in the soil of this country or whether the Indian President will become, what
some say he already is, three parts British King and one part American
President or develop into an Indian Soekarno will dependjon the political climate
47. The Statesman, (editorial), 14 May 1962, P. 6.
[ 36 1
of the country in the years to come. Some eight years ago, B.N. Rau wrote: "One
can conceive of no better future for the President of India than that he should
be more and more like the monarch in England, eschewing legal power, standing
outside the clash of parties and gaining in moral ¿authority". 48 Unless
there is a radical change in India's political spectrum and unless the letter of
the Constitution comes to acquire greater authority than its spirit, we have
reason to believe that the Indian Presidency will run true to this desired and
desirable horoscope.
4P, B. N. Ran. oP. Cil., n. 29, P. 382,

President&#39;s Limits of Discretion

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

President&#39;s Limits of Discretion

Caricato da

Copyright:

Formati disponibili

Indian Political Science Association

THE PRESIDENT OF INDIA LIMITS OF DISCRETION

Motilal Nehru Regional Engineering College, Allahabad .

circumstances. My submission is that he is not. " 1 According

More recently, the controversy regarding the President's posit

1. D, N. Banerea. "Position of the President of India". The Modern Review

In a newspaper article published some three years ago K. M. Munshi, an

In view of the continuing controversy, it may be instructive to see what

In the second place, the framers accepted it as a natural corollary of the

can do nothing contrary to their (the Ministers') advic

11. C A. D.. IV. P. 134. (Jawaharlal Nehru)

In the third place, though the constitution-makers intended the President

Evidently, the sanctions to prevent the President from exercising arbitrary

30. K. L. Punjabi, Rajendra Prsaad. Madras. 1960/ p. 161.

The assumption is supported by whatever evidence is available in

India, one may say, has been singularly lucky in having

(35) B. N. Rau, op. cit., n. 29, p. 382.

Article 111 of the Constitution authorises the President to withhold

(43) B. N. Rau, oP. cit., n. 27, Pé 37TÍ

As 'custodian' of the Constitution, the President is supposed to have

The clear meaning of postulating 'responsibilities' or 'reserve powers' for

It must, of course, be conceded that it is too early at this stage to define

47. The Statesman, (editorial), 14 May 1962, P. 6.

4P, B. N. Ran. oP. Cil., n. 29, P. 382,

Potrebbero piacerti anche

President's Limits of Discretion

President's Limits of Discretion